Targeted Advertising refers to behaviour-based advertising in which companies focus on their audience’s demographics such as the person they want to target, depending on what they like to do and what they want to buy and then make curated advertisements for them. 

However, is such advertising safe for you as a user? Where does the company draw a line of “mapping” your activities and targeting you? 

Targeted advertising actually works on the principle of “surveillance”. It is premised on the unseemly collection and hoarding of personal data to enable ad targeting. Several laws, such as in India through the Telegraph Act 1885 and the Information Technology Act 2000, have been created across the globe to protect an individual’s identity, privacy, interests and goodwill as far as surveillance is concerned, but little has been done for regulating online targeted advertising. 

Under the Telegraph Act 1885, even the government can intercept calls only in certain situations which includes: interests of the sovereignty and integrity of India, security of the state, etc.—the same restrictions imposed on free speech under Article 19(2) of the Constitution of India, as well. 

At one instance even the government’s actions are regulated through laws, while at another instance, private parties have the capacity to access and intercept a user’s activities on the internet, for “advertising” purposes. The US introduced The Banning Surveillance Advertising Act that prohibits ad-tech companies from using consumers’ personal information to target ads, allowing online platforms to chase user engagement violating several laws, causing misinformation, discrimination, privacy abuses, etc. 

Consumer protection initiative

In India, the “Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022” was introduced recently, as a “consumer protection” initiative. It specifies due diligence to be carried out while endorsing in advertisements. While the guidelines are applicable to advertisements published on all platforms like print, television and online, the important question to be asked is, whether such guidelines are enough to sufficiently help the customer with the perils of targeted advertising in the digital world, especially in the current Indian legal ecosystem where there is little data privacy legislation. 

The guidelines give a framework for industry stakeholders to prevent misleading ads even by mistake and aims at empowering consumers and consumer organisations to file complaints against misleading ads and talks about advertisements targeting children. This legislation primarily focuses more on the “nature” of the advertisement itself, meaning its tone and content, and less on the manner in which these ads are specifically targeting, categorising users and using their data in ways which they are perhaps unaware about. 

Debate on profiling Targeted advertising can also lead to discrimination, infringing upon constitutional rights granted to availed by each citizen of India. It’s simple really—the platform gives you a set or category of individuals that are a “perfect fit” for your products and services—this could, in a lot of situations, be considered to be discriminatory if the categories are pointing towards a certain “race” or “type” of individuals. This type of profiling was also used, and highly debated, during election campaigns by several political parties, across the globe. 

Robust legislation needed

These factors and the fact that online marketing and commerce is such a massive industry, makes the need for creating robust special legislation regarding targeted advertisements even more important, and the “Prevention of Misleading Advertisements and Endorsements for Misleading Advertisements, 2022” is perhaps still a step behind. 

In India, people have the right to receive commercial speech, i.e., speech or writing that advertises a product or service, as per article 19(1)(a) of the Indian constitution. But who is gatekeeping the user’s personal information and right to privacy? 

(The author is Managing Partner, Verum Legal, a law firm)

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